Gummerson v Strecker

[*1] Gummerson v Strecker 2005 NY Slip Op 51353(U) Decided on August 26, 2005 Auburn City Court McKeon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 26, 2005
Auburn City Court

Lance Gummerson, Plaintiff,

against

William Strecker and Christine O'Connell, Defendant.



SC05-0120

Michael F. McKeon, J.

In this action for non-payment of rent and a gas and electric bill, plaintiff sues for $2,601.30. The rent claim totals $2,000.00 at a rate of $400.00 per month for five months with the gas and electric bill totaling $601.30.

At the hearing, neither party submitted written evidence of the amount of rent paid, the plaintiff having no records concerning payments by the defendant and the defendant having no receipts since he claimed he always paid in cash and never received receipts. Real Property Law Section 235-e imposes a duty upon a residential landlord when paid in cash or other instruments than a personal check to provide the tenant a written receipt.

While the statute imposes no sanction for the failure to provide receipts, some courts have considered the failure in weighing the testimony of the landlord. In fact, two counts have determined that when the only evidence before the Court is the contradictory statement given under oath by the respective parties, the doubt as to payment should be resolved in favor of the tenant. Bunkman vs Cahill 143 Misc 2d 1048 (1989), Palmeri vs Heindandley, 127 Misc 2d 369 (1984).

One court however has ruled that since the statute is silent as to any sanctioning courts should not read into the statute a presumption in favor of the tenant. Read vs Raysdale 181 Misc 2d 773 (1999).

While none of the above cases are binding on this court, since all three decisions are by courts of co-equal jurisdiction, this Court finds the Bunkman and Palmeri decisions persuasive.

While it is true the legislature imposed no sanctions for a violation of the statue, it stands to reason that courts should be able to consider the violation in deciding summary proceedings and actions for rent due and owing.

The statue does not impose an omnibus burden on the landlord, indeed the statues simply [*2]mandates what any landlord in the residential rental business should do as a good business practice. Keeping accurate records of rental payments received and provides a receipt evidencing that transaction to the tenant.

Accordingly, this Court finds that rebutable presumption in favor of the tenant as to payment of rent is an appropriate judicial response to a violation of Real Property Law Section 235-e by the landlord. Since the landlord failed to submit proof of any receipts provided to the tenant and the only evidence submitted as to rent payments is the contradictory statement of both parties, the Court dismissed the plaintiff's claim for rent.

However, the Court finds for the plaintiff as to the gas and electric claim in the amount of $601.30 plus costs of $36.00 for a total judgment of $637.30.

Auburn, New York

Dated this 26th Day of August, 2005

______________________________________ Hon. Michael F. McKeon

City Court Judge